viü Contents 7 Torts 128 1 Statute law and 1_. The _Iiability ~or tort. 2. General conditions ofliability (mtentiOn, mottve and malice. Negligencc. Liability wirhaut intention or negligence. Darnage and damages). 3. Termination of liability (Death of eirher pany. Limitation of actions). 4. Specific torts (Wrongs to personal safety and liberty. Defamation. Abusc of legal proceedings. Interference with family and contractual relations, business and employment. Fraud. Torrs in respect of property). 8 Crimes 146 1. LAW AND LAWS. We commonly speak ofbothlaw andlaws-the 1. Sources of criminallaw. 2. Civil and criminallaw cantras red. English Law, or the Laws of England; and these terms, though 3. Classi:fication of crimes and offences. 4. General principles. 5. High not used with precision, point to two different aspects under treason. 6. I~citement to disaffection. 7. Unlawful assembly and riot. which legal science may be approached. The laws of a country are 8. Preservatmn of order on the occasion of public processions and thought of as separate, distinct, individual rules; the law of a public meetings. 9. Libel, sediüon, andobscenity. 10. Homicide. 11. Offences againsr properry. country, however much we may analyse it into separate rules, is something more than the mere sum of such rules. lt is rather a Notes 163 whole, a system which orders our conduct; in which the separate Further reading 166 rules have their place and their relation to each other and to the Index whole; which is never completely exhausted by any analysis, how­ 171 ever far the analysis may be pushed, and however much the analy­ sis may be necessary to our understanding of the whole. Thus each rule which we call a law is a pan of the whole which we call the law. Lawyers generally speak of law; laymen more often of laws. There is also a more precise way in which we use this distinc­ tion between law and laws. Some laws are presented to us as having from the beginning a separate and independent existence; they are not derived by any process of analysis or development from the law as a whole. We know when they were made and by whom, though when made they have to take their place in the legal system; they become parts of the law. Such laws in this country are for the most part what we call Acts of Parliament, or, as they are called generally by lawyers, statutes; collectively they are spoken of as Statute Law. On the other hand, putting aside for the present the rules of Equity, the great body of law which is not Statute Law is called the Common Law. The Common Law has grown rather than been made. We cannot point to any definite time when it began; as far back as our reports go we find judges assuming that there is a Common Law not made by any legislator. When we speak of an individuallaw we generally mean a statute; when we speak of the law we are thinking of the system 2 Statute law and common law The relations between stalute law and common law 3 of law which includes both Statute and Common Law, perhaps (2) Where Statute Law and Common Law come into compe­ more of the latter than of the former. A rule of the Common Law tition, it is the former lhat prevails. Our law sets no Iimits to the would rarely, if ever, be spoken of as a law. power of Parliament. 'The sovereignty of Parliament is (from a This distinCtion between law as a system and law as enactments legal point of view) the dominant characteristic of our political is brought out more clearly in those languages which use different institutions. '1 No court or judge can refuse to enforce an Act of words for each: the French droil, the German Recht, mean 'law': Parliament, though in the exercise of its duty to interpret an Acta loi and Gesetz mean 'a law'. court may sometimes alter considerably the effect that the legis­ 2. THE RELATIONS BETWEEN STATUTE LAW AND COMMON lators bad intended the Act to have. No development of the LAW. (1) In spite of the enormous bulk of the Statute Law-our Common Law can repeal an . The Common statutes begin with the reissue of in 1225 in the reign Law cannot even correct its own defects by taking away what it of Henry III, and a !arge volume is now added every year-the has once finally laid down. Thus !arge parts of the Common Law most fundamental part of our 1aw is still Common Law. No have from time to time been abolished by Act of Parliament, and statute, for instance, yet prescribes in general terms that a man their place has been taken by statutory rules. must pay his debts or perform his contracts or pay damages for This supremacy of the statute-making power is not a logical or trespass or libel or slander. The statutes assume the existence of even a practical necessity. It is weil known that under the Consti­ the Common Law. Except in so far as they resrate in the form of a tution of the United States neither Congress nor the Stare Legisla­ code some particular branch of the law, they are the addenda and tures have an unlimited power of legislation. The unlimited legis­ errata of the book of the Common Law; and they would have no lative power of Parliament is a rule of our Constitutional Law. It meaning except by reference to the Common Law. If all the is _quite conceivable, and it was at one time supposed _to be the Statutes of the realm were repealed, we should still have a system case, that there were principles of the Common Law wh1ch would of law, though, it may be, an unworkable one; if we could control an Act of Parliament. We read in a seventeenth-century imagine the Common Law swept away and the Statute Law report: preserved, we should have only disjointed rules torn from their context, and no provision at all for many of the most important It appears in our books that in many cases the Common Law will ~ontrol relations oflife. The Law Commissions Act 1965, however, estab­ Acts of Parlia.ment and sometimes adjudge them to be utterly vmd; for lishes a body of Commissioners whose task it is to prepare legis­ whenever an Act of Parliament is against right and reason or repugnant or impossible to be perfonned, the Common Law will control it and lation which shall reform and simplify the law, and the Commis­ adjudge such Act tobe void. sioners-stated, in announcing their first programme ofwork, that they intended to prepare a codilication of the laws of conttact and There is a faint echo of this view in Blackstone's Commentaries of Iandlord and tenant. These major codes have not yet been (1765), i, p. 41; but this passagein the Garnmentaries is hardly con­ completed (the Annual Report of the Law Commission for 1972-3 sistent with what the author later says about the legislative power states that work on the preparation of a code of the law of con­ ofParliament (ibid., i, pp. 160-1). In fact the lawyers have, from tract has been suspended, and so it is now doubtful whether it will an early period, recognized and acquiesced in the sovereignty of 2 ever be completed), but certain codes dealing with more restricted ParJiament. areas of law have been enacted in recent years, e.g. the Theft Act There are of course obvious practical limitations upon the 1968, the Animals Act 1971 and the Forgery and Counterfeiting power ofParliament, andin particular it is doubtless highly desir­ Act 1981. The work of the Law Corninission has in recent years able since the 's entry to the European Commuru­ also led to much obsolete legislation being repealed. For example, ties in 1973 that Parliamentary legislation should accord with the much of the old Sunday Observance legislation was swept away needs, not only of this country, but also of our European part­ by the Statute Law (Repeals) Act 1969. ners. The courts wiH also not infrequently interpret statutes m such a way as to be in line with modern needs, which may differ 4 Statute law and common law Tlw relations between statute law and common law 5 from those in existence when the Acts were passed. But there is interpretation, and his decision will be a binding authority for all no modern instance of any. coun denying that it is in fact and in future cases in which the same question arises, just as we shall see law absolutely bound by any Act which has not been repealed by Parliament itself. that a judge's decision is a binding authority for future cases where a question arises as to the Common Law. In this way many (3) How da we know the law? Here there is a great difference statutes-especially the older ones-have become overlaid with a between Statute and Common Law. A statute is drawn up in a mass of judicial interpretation which cannot be departed definite form of words, and these words have been approved by from. Parliament and have received the . In general there is On the other hand, we have no authoritative text of the no difficulty in ascertaining the words of a statute. At the present Common Law. There is no one form of words in which it has as a day two identicaJ printed copies are made, each bearing a certifi­ whole been expressed at any time. Therefore in a sense one may cate of the Clerk of Parliaments that the Royal assent has been speak of the Common Law as unwritten law in cantrast with given, andin the last resort reference can be made to these copies Statute Law, which is written law. Nevertheless, the sources from for the purpose of ascertaining the true words of the statutes. For which we derive our knowledge of the Common Law are in writ­ practical purposes any copy made by the King's printer is suffi­ ing or print. First among these come the reported decisions of the cient. In the case of some old statutes there is a possible doubt not judges of the English courts. Ever since the reign of Edward I only as to the exact words of a statute, but even whether such a there have been lawyers who have made it their business to report statute was ever made; but in practice such doubts hardly ever arise. the discussions in court and the judgements given in cases which seemed of legal interest. The earliest of these reports are the Year­ Still the words of the statute are not the statute itself; the law Books. They are reports of cases made by anonymaus reporters expressed by the words is not the same thing as the words which from the time of Edward I to that of Henry VIII. These are fol­ express it. Thus a person imperfectly acquainted with English lowed by reports produced by lawyers reporting under their own may know the words of the statute, but he will not know the law. names. They were at first published (like textbooks) only as and The same is true to a greater or Jess degree of anyone who comes when the author, or the representatives of a deceased author, saw to the reading of a statute without sufficient legal knowledge. The fit to da so. It was not till the end of the eighteenth century that interpretation of a statute requires not only a knowledge of the reports began to be regularly published contemporaneously with meaning of legal technical terms, but also of the whole system of the decisions of the cases reported. At the beginning these reports law of which the statute forms a part; in particuJar it requires a seem to have served mainly the purpose of instruction and infor­ knowledge of the legal rules of interpretation, which are them­ mation. The fact that a judge had stated that such and such was selves ruJes of law. Some of these are Common Law ruJes; some the law was evidence, but not more than evidence, that such was are themselves statutory. Thus there is a Common Law rule that the law. He might have been mistaken; analher judge might in interpreting a statute no account must be taken of anything perhaps decide differently. But in course oftime we find a change said in debate while the statute was passing through its various in the attitude of judges and lawyers towards reported decisions. Stages in Parliament; as far as possible the words of the statute The citation of decided cases becomes more frequent; greater and must speak for themselves. So there is a statutory rule that in Acts greater weight is attached to them as authorities. From the marle since 1850; unless a contrary intention appears, masculine sixteenth century onwards we may say that decided cases are words shall include the feminine, words in the singular shall regarded as a definite authority, which, at least in the absence of mclude the plural, words in the plural shall include the singular. special reasons to the contrary, must be followed for the future. Even lawyers may differ as to the meaning of a statute. If such a For the last 350 years, at any rate, the decisions of judges of the question arises for the first time in a lawsuit, the judge will have higher courts have had a binding force for all similar cases which to decide the meaning in accordance with the recognized rules of may arise in the fu~ure. 6 Statute law and common law Ratio decidendi arnl obicer dieturn 7 3. THE BINDING FORCE OF PRECEDENTS. This binding force important that the law should be certain than that it should be is not, however, in ali cases an irresistible one. The decisions of the perfect. The consequence is that even a higher court, though it hig?est appellate court in the country for the overwhelming may think a decision of a lower court wrong in principle, may ma)onty of English cases-the House of Lords-are absolutely refuse to overrule it, holding that the evil of upsetting what bmding on alllower courts, and usually upon itself. (The House everyone has treated as established is greater than the evil of of Lords, like all other municipal courts, is subordinate on allowing a mistaken rule to stand. The best eure in such a case is matters of European law to the Court of Justice of the European an alteration of the law by statute, for an alteration by statute does Commumoes.) But m 1966 the House decided that it would in not work the same hardship as a reversal by a higher court of what future consider itself able to depart from any previous decision of was supposed to be the law. A statute need not, and as a rule does the House when it appeared right to do so. There have been several not, affect anything done before it was passed. Previous trans­ notable instances when it has exercised this new-füund power, actions remain governed by the law in force at the time they were and the general result has been a relaxation of the former strict made. But the theory or fiction of our case law is that the judge bindingnature of precedent. So, too, the decisions of the Court of does not make new laws, but only declares what was already law; Appeal, which stands, for civil cases and for some criminal cases, so that if a higher court overrules the decision of a lower court, it next below the House of Lords, are binding declarations of the declares that what was supposed to be law never really was law, law f?r a_lllower courts, and even for itself. There are, however, and consequently past transactions will be governed by a rule certam cuc~msta!lces in which a decision of the Court of Appeal, contrary to what the parties believed to be law. e.g. when gtven m conflict with what it had previously decided, 4. RATIO DECIDENDI AND OBITER DICTUM. If you open a has not been followed, even by a lower court. volume of the Law Reports and read the report of a case, how will Decisions rendered by Divisional Courts, which consist of two you discover the law which the decision lays down? How will you or three judges of the High Court sitting usually to review the find what is called the ratio decidendi-the principle on which the proceedings of an inferior tribunal or to hear an appeal from the decision is based? Remernher that the judge is not a legislator. It decision of magistrates in a summary criminal trial, rest to a large is not his business-in form at any rate-to make rules of law; his extent on the same footing as those of the Court of Appeal. A first duty is to decide the dispute between the parties. The decision, however, of one High Court judge, though treated by dispute may be largely a question of fact. In some cases the another as of high persuasive authority, is not absolutely binding questions of fact will have been already answered by a jury; in on htm. others the judge hirnself will have to decide questions of fact. At . On the o_ther han~, a decision of a lower court is not, in the first any rate, the judgement will involve the application of principles mstance, bmding on any court ranking above it. But in the course of law to concrete facts. The reader of a Law Report must of time it may acquire an authority which even a higher court will therefore first disentangle the law stated in a judgement from the not d1sregard. It may happen that a question has never been facts to which it is applied. That may be a difficult matter. No carried up to the Court of Appeal or to the House of Lords, but form is prescribed in which judgements must be delivered, and it that the lower courts have repeatedly decided it in the same way; may often be a matter of doubt how far a decision turns on the or tt may be that even a single decision of a Iower court has view which the judge took of the facts, and how far on a rule of remained for a long time unquestioned. In such a case the law which he considered applicable. The headnote which is put at necessary result will be that lawyers and the public have come to the beginning of a report of a case generally contains a Statement regard such a decision as law, and have acted as if it was law. of the rule supposed to be involved. But this headnote is not part Pe~ple will have made contracts, carried on business, disposed of of the report; it is merely the reporter's own view of the effect of .the1r property, ~n the faith of such a decision, and the reversal of the judgement. In using a Law Report, therefore, everyone is the rule would Involve enormaus hardship. It''is sometimes more free, where there is room for doubt, to hold l;Lis own view of what 8 Statute law and comnzon law Howfardo thejudges make the law? 9 was the law laid down in any particular case, unless and until the nobody, existing I suppose from eternity and merely declared from time doubt has been settled by a subsequent decision. to time by the judges. From the ratio decidendi we must carefully distinguish what are called dzcta or obuer dicta-'things said by the way'. According to the view of these writers and others who have An obiter dictum, strictly speaking, is a statement of the Jaw followed them, for instance Salmond and Gray, judges are really made m the course of a judgement, not professing tobe applicable law-makers, and in laying down the law exercise a function to the actual question between the parties, but made by way of almost, if not exactly, like that~of the legislator in making new law explanatwn or Illustration or general exposition of the law. Such from time to time. The two points of view are admirably stated in dzcta have no binding force, though they have an authority which Maine's Ancient Law: rs enatled to respect and which will vary according to the reputatlon of the particular judge. With respect to that great portion of our legal system which is enshrined in cases and recorded in Law Reports, we habitually employ a double We sometimes find that a judge in deciding a case will profess language, and entertain, as it would appear, a double and inconsistent set to decrde It on a principle really wider than is necessary for the of ideas. When a group of facts come before our English court for purpose, when it might have been decided on some already adjudication, the whole course of the discussion between the judge and recognized but much narrower ground. In such a case the the advocates assumes that no question is, or can be raised which will call supposed principle is in effect equivalent to an obiter dictum; it for the application of any principles but old ones, or of any distinctions will not be treat~d as the true ratio decidendi of the case. but such as have long since been allowed. It is taken absolutely for But a reason given by a single judge for his decision is not to be granted that there is somewhere a rule of known law which will cover the regarded as obiter merely because he has given an additional facts of the dispure now litigated, and that, if such a rule be not reason in the s.ame judgement. Where there are several judges, discovered, it is only that the necessary patience, knowledge, or acumen ~nd they agree m the result, but give different reasons, the matter is not forthcoming to detect it. Yet the moment rhe judgement has been rendered and reported, we slide unconsciously or unavowedly into a new rs left open for a judge in a subsequent case to decide which reason is the right one. language and a new train of-thought. We now admit that the new decision has modified the law. The rules applicable have-to use the very . 5. HOW FAR DO~THE JUDGES MAKE THE LAW? I have spoken inaccurate expression sometimes employed-become more elastic; in fact, hitherto of JUdicral decisions, not only as the source from which they have been changed. A dear addition has been made to the we get our knowledge of the Common Law, but also as binding precedents, and the canon or law elicited by comparing the precedents is authontres. But this is consistent with two different views of the not the same with that which would have been obtained if the series of relation of the judges to the law. First, and this is the older cases had been curtailed by a single example. 3 theory, we may suppose that a judicial decision is no mo~e than a I think that neither of these views is the whole truth. On the declaration and evidence-but condusive evidence-of what already one band, it is, of course, untrue that our Common Law has ~x1sts.; the Common Law, as a whole, it is said, has existed from always been the same, even if we disregard the changes made by tune rmmemorial in the minds of judges and lawyers-perhaps in the minds of the people at !arge so far as they could understand statute. No one can seriously imagine that the Common Law of 600 years ago would have bad an intelligible answer to many of lt-and every decision is merely a manifestation of it. We find this view in Hale's History of the Common Law (1713) and in the legal questions of modern life. We know, as a matter of fact, Blackstone (1765). Secondly, we find Bentham and Austin that it answered some questions in the opposite sense to that in speaking of which_ we now answer them, e.g. a simple executory contract had no legal effect then, and~ we can trace the steps by which it acquired legal effect. On the other hand, to say that a judge in the ch.ildish fiction employed by our judges that Judiciary Ör Common deciding is ever doing anything analogaus to legislation is really Law ts not made by them, but .is a rniraculous 'Something made by doing violence to the facts. In the majority of cases where a new 10 Statute law and common law Howfardo thejudges make the law? 11 pr~c~dent is established, the process is obviously that of applying exJstmg acknowledged principles to a new set of facts. The till a decision has been given, because in everY case the process of decision involves the mental process of bringing the particular principles, it may be, give no explicit answer to the question put. It does not follow that they give no answer at all. By a process of facts within some principle. Suppose, on the one hand, a question deductmn, by ar.gument from analogy, the existing principles whether A's conduct amounted to an acceptance of an offer; on may be made to yield a new principle, which is new because never the other, whether a given transaction is contrary to public policy. exphcitly stated before, but which in another sense is not new There is an apparent, but not a real difference. In the former case because lt was already involved in what was already acknow­ the existing principles are so weil defined that it Iooks as if the ledged. J~st m tlle same way the conclusions of a science may be facts automatically, as it were, fall into the pigeon-hole which tlle law provides; in the latter the principle is so wide that in order to mvolve~ m Its premisses, and yet when first made constitute somet!Img new, an addition to what was before acknowledged. apply it t!Ie judge must explicitly and openly say, 'conduct which Even where a declSlon does not follow a definite Jogical process has such and such qualities is contrary to public policy', and so fro~ a~knowledged principles it has not the arbitrary character of frame a rule which defines and develops the conception of public leg.tslauon. In the a bsence of clear precedents which might govern policy. But in the former case the same process has really been a quesuon, we find JUdges relying on such considerations as tlle gone through. The act does not really fall automatically into the opm10ns of legal writers, the practice of conveyancers, the Jaw of pigeon-hole; the judge must have bad in his mind the qualities of an act which will make it an acceptance; the judge really says, ?th~r ~odern ~ount~Ies, the Roman Law, principles of 'natural JUSUce or pubhc pohcy. The proper application of these may be a 'conduct such as that in this case amounts to an acceptance'. The matte~ of dispure and difficulty but in any case the judge is bringing of concrete facts under a rule is always a mental process, applymg a Standard; he shows that he is not free to decide as he and a process of generalization. In this way every case which is pleases, as a legislator would be; he is bound to decide according decided means a development of the principle which is applied. to prmciple. If we say that the judge really makes t!Ie law Jike a The practical difference is that in tlle majority of cases the leg1s!ator, we shall be bound to say t!Iat the facts of the case were application is so easy, and the development of the existing prevmusly governed by no law; 4 they fell outside the realm of Jaw principle is so infinitesimal, that the case is not worth reporting, whe~ they occurred, and are only brought within it when the and therefore, for practical purposes, adds nothing to the law. dec~s~on IS g1ven. To argue that this is so, because before the A distinction is sometimes made between 'declaratory' prece­ deci~IOn no one knew with certainty what the Jaw was, is Jike dents, which merely declare existing law, and 'original' precedents arg~ung that a piece of land is valueless until it has been sold, or which lay down new law. In truth tlle difference is one of degree unul a valuer has made a valuation of it, because till then no one and not of kind. If we have a case which deals with certain facts Ju:'ows Wlth certamty for what it will be sold or at what figure it by applying an acknowledged rule, we really have an addition to Will be valued .. In truth, the parties in fixing the price, or t!Ie the rule, because we now know that a certain kind of fact falls valuer m makmg the valuation, have really tried to discover within it, and in the nature of things we can never have two sets of something already existing. The analogy goes further; just as the facts which are precisely siniilar. No precedent is purely pnce or the val~atmn, even though mistaken, will be a new 'declaratory' or purely 'original'. , element ~hichwill help to determine the value for the future, so The contradiction between the view that judges merely declare the JUdge s decision on the law on a given question, whether right the Common Law, and the view that they make new law in the or wrong, fixes or helps to fix the law for the future. same way as a legislator does, is solved by the conception of Agam tl!e view that till a rule is laid down in a legal decision evolution of development which was not familiar either to the old there IS no Iaw governing the facts of t!Ie case will really Iead to lawyers, such as Blackstone, or to their critics, such as Bentham the conclusmn that no concrete set of facts is governed by any Jaw and Austin. The essence of that conception is that a thing may change and yet remain the same thing. To ask whether our law of 12 Statute law and common law Advantages and disadvantages of case law 13 today is the same law as th E li h I a phrase of Sir F d . e ng s aw of 600 years ago is, to use (4) Their practical character. Because the ru1es laid down by rhe John Milt h re enck Pollack, 'like discussing whether the cases are the product, not solely of academic speculation, bur of Milton w~~ :~t:~~:i~a","ff~Agonthistes was really the same John difficulties which have actually arisen, rhey are practical rules E I as . t IS e same and not the sa which are in close tauch with the needs of everyday life. ca::?; is a step in the process of growth. In i:~~ed;cision ev~:; The great disadvanrages of Case Law are: equally true th~t;~:~ ~ al~eady a l~w applicable to the facts; it is (I) Rigidity. Where a ru]e has once been decided, even though precisely what it was bef:re e~~~~d asb~e~n given, the}aw is not wrongly, it is difficult and sometimes impossible to depart from refers to as evid · ou e anguage' whtch Maine it. I do not agree with those who think that flexibility is a of a fundament~~~: a deep-seated fiction is really an expression characteristic of Case Law. The binding force of a precedent is a 6. ADVANTAGESAND DISADVANTAGES OF CASE LAW Th fetter on the discretion of the judge; but for precedent he would system of Case Law · ur · e have a much freer band. (2) The danger of illogical distinctions. When a rule which is ~~~ ~~= ~~~;e~ r~Sf.~ rr:~ ~n;:t~~s :~~e~~~ ~~:'n~i~~: binding is feit to work hardship, a judge will often avoid applying future. In other ect e c~ses are bmding authorities for the it to cases which logically ought to fall wirhin it, by laying hold of In other countri~:~u:Jes this_ IS ~ot so, ?r ~as not so till recently. minute distinctions which will enable him to say that the later both of enacted I e JU~ge, m hts applicatJ.on and interpretation case is different from the earlier case in which the rule was always underlie an": an of the general principles which will established. Every now and then a precedent Ieads one into a revi d . . supplement enacted law' Is not bound by P ous ectsiOns of the same th blind alley, from which one has to escape as best one can. So, too, indeed is b d . or any o er court, but is free and . d oun to dectde according to the best of his o rules which are logically inconsistent with each other are JU gement. wn sometimes developed along distinct lines of cases, which ulti­ mately meet and come into conflict. of a system ofCase Law in the English sen~~:r!r::~r~dvantages (3) Bulk and complexity. The wealth of detail, and the fact that (1) Certainty. The fact that decided c b" · . the rules of law are to be found scattered over more than 2,000 persuasive authorities for the future a~s a~e mding or htghly volumes of law reports, make the law extraordinarily cumbrous highly probable that ma es ~t cert:un or at least and difficult to learn and apply. will be dec. d d . hevery future case whtch IS essentially similar I e In t e same way Peopl th .c I have no doubt that the advantages of our system far outweigh their conduct with nfid · e may erewre regulate the disadvantages. Still, the disadvantages are serious. The eure judges. co ence upon the law once laid down by the for them is to be found, and has from time to time been found, in (2) The possibility of growth Wh Statute Law. Where rules have been definitely laid down which statute or precedent new I. feirever the way is not closed -by produce hardship, where the rules have been made complicated ' rueso- awwilJfromtim t . b auth oritatively laid down t . e o tune e and illogical by attempts to avoid hardship, Statute Law must changing needs of s . . o meet new CITcumstances and the intervene to remove the hardship or to lay down simple and the work of the ·ud octety. there Is no system of Case Law W~ere intelligible rules; and the Law Commission set up in 1965 the law for the iur:: :V?-o dectdes a case leaves no Iasting mark bn (mentioned above, p. 2) does facilitate the attainment of these goes, thrown away. e. It Is, as far as the development of the law objects. A Law Revision Committee was set up in 1933 (and (3) A great wealth of d ·z d l . revived after the Second World War under its present name, the detail th e1 at e ru es. Our law IS much richer in an any code of law (uni b d Law Reform Committee) to make proposals for the reform of possibly be. The German Civ· ess ase on Case Law) can branches of law which, for any of these reasons, needed than 2,500 paragraphs. il Code, for mstance, consists of less reconsideration; and some of its proposals have become Statutes which have made salutary changes in the law (for instance, 14 Stature law and common law Other sources of the common law 15 changes . as ' to the Status of married women corporauons contracts PP 61 4 th . pp. 48-52, courts of other countries which administer a law derived from or action in tort PP 133.._4 ·r .- ~ e survJval of causes of related to our own, such as the Scottish, Irish, Commonwealth, contributory ~egli. ence ' lmttatmns of actions, pp. 134-5, and American courts, though not binding upon our courts, are p. 116 liabi!ity f g . ' p. 131' enforcement of contracts ' o occup1ers of premi . ' entitled to great respect. Even the judgements given by the pp. 33 119-20) s . . ses, p. 122 ' nusrepresentation ' · o, agam whe h 1 h ' Judicial Committee of the Privy Council, which acts as a final worked out in detail b ' h re t e aw as been satisfactorily Court of Appeal from those parts of the Commonwealth whose unmanageabJe Statut ' ut t de mass of scattered decisions is highest courts have not final authority, are not binding upon our orderly arraog~ment o~~';:' e~~ ~rt~~ the work of codification, an courts; but the fact that the members of that tribunal are, to a thJs way some considerabl a JS e rules m statutory form. In !arge extent, the same persans as the members of the Hause of from time to time b e poruons ~f the Common Law have Lords when it sits as ao Appeal Court, greatly increases their material alteration oc"::bc~nverted mto Statute Law without authority. The Hause of Lords is a common court of final appeal decisions is removed or les:e::~' t~ ~abour of searching for in civil matters for Englaod and Wales, Scotland, aod Northern made accessible to persans wh; an t e Jaw IS t? some extent Irelaod -and for England and Wales and N orthern Ireland in Examples of such cod"fi . are not professwnal lawyers. 1 cauon may be found . h ß" criminal matters; where the principles involved are substantially Exchaoge Act 1882 the Sal m t e ills of the same, or where the question turns on a statute common to replaced by the S~e f Geo:G~odsAct 1893(nowrepealedaod England and one or both of these other countries, the Lords' Supply of Goods and S~ . oo s ct I 979' aod added to by the decision on a Scottish or Irish case will be treated as binding series of Property Acts :::~~ ~ct 1982), and to some extent in the authority for English cases. Acts see below 72 ame mto force m I 926. (For these Same of the works of the older writers such as the Commentary only partly codif_0~g Ac~ ~ ß~~1hese ~ast-mentioned Acts are written by Coke in the seventeenth century on the fifteenth­ far-reaching changes in th {. s d L see t at they effect great and century treatise of LittJeton on Tenures, and Sir Michael Foster's above, p. 2, further maJ"ore adifi~ aw. As has been mentioned work on Crown Law written in the eighteenth century; are known course as a result of th cok f catmn can be expecte d m· due e war o the Law C . . as 'books of authority', and have a force nearly equal in binding some parts of the criminallaw h b ~mnusswn. Already effect to judicial decisions. Other treatises on law have a merely efforts. ave een codified as a result of its 'persuasive' authority which will vary with the reputation of the How far the Common Law as a h . writer. But the courts are more and more prepared these days to Iikely tobe codified in th. . w ole JS capable of beingor is cite with approval relevant passages from major modern text­ discussed. But at ao Js way JS a question which cannot be here . ' y rate two cond"t"1 f . books. The practice of conveyaocers-lawyers whose business it is codification may here be · di ' . IOns o a satisfactory to draw up conveyances, wills, and other legal documents-is material lass the richnes mf dcate~l· (l) It must reproduce wirhaut f s o etm which is h · · sometimes valua ble as evidence of what the law is. o our system of Case Law· a c aractenstic merit 8. DELEGATED POWERS OF LEGISLA T!ON. In many cases of the briefand abstract kin~e :~~c~~not be content with a code Parliament has conferred by statute on government departments, Wlth success in foreign Countries. 2 as been .adopted aod used on public officers, aod on public bodies such as local government not deprive us of the ad ' ( ) the adoptwn of a code must . . vaotages which we at . authorities, the power of making by-laws, rules, or regulations for th e prmcJple of bJ" d. present en}oy from · . n mg precedents · · · d · · . . definite purposes aod within prescribed limits; and the exercise of mterpretmg the code will still be b. . . J.e. J~ lCJa 1 decJswns such a power produces rules of Iaw which are equivalent in force by which the law will dev mdmg, and Will sull be a meaos to statutory enactment. In recent times Parliament has been very the law by framing detailed stJll be capable of enriching e~~f;s.Wlll lavish in giving such powers to government departments-in some 7. OTHER SOURCES OF THE COM . cases a government department has even been given power to MON LAW .•• The decisions of modify ao Act of Parliament. 16 Statute law and common law

Acomnuttee · of judges and Ia h the procedure in the High Cou':i'ers as power to make rules for are genumely legislating Th . In exercJsmg thls power they 2 Common law and equity mka e such rules as they think. eyarenotboudbn y precedem but proper. '

1. EQUITY AND MORALITY. Apart from Common Law and Statute Law, the most important department of our legal system is Equity. We sometimes use the term 'equity', or words corresponding to it, in popular language as if it was something altogether outside law. We speak of a judgement in a particular case or of a rule laid down in a judgement as being undoubtedly according to law, but as hefig 'unfair', or 'unjust', or 'inequitable'. In cases of this sort we are really passing a moral judgement upon the law. Such a moral judgement in no way affects the law. It may be a reason why the law should be altered by statute; it does not prevent it from being Iaw, or affect its operation, as Jong as no alteration in the law is made by statute. But when a modern lawyer uses the terms 'law' and 'equity' he does not. mean t~ say that equity is not law. He is speaking really of two different kinds of law -the Common Law on ihe one side, the rules of Equity on the other-which are equally law. They are rules which are not merely morally but legally binding: they are enforced by the COUrts. 2. THE RELATION BETWEEN LAW AND EQUITY. (1) The distinction between law and equity occurs in other systems. Thus the ius honorarium, developed by tbe praetor's edict, played a vital part in the development of Roman Law. But while in Rome ius honorarium was administered in the same courts as the ius civile, in England law and equity, until the Judicature Act 1873 came into effect in 1875, were administered in different courts. (2) These two sets of rules, though distinct, must not be looked upon as two Co-ordinate and independent systems. On the contrary, the rules of Equity are only a sort of supplement or appendix to tbe Common Law; they assume its existence but they add something further. In tbis way Equity is an addendum to the CommonLaw.